Title Guaranty & Surety Co. v. Drennon

• Decision Date: 02 December 1918
• Docket Number: No. 12924.,12924.
• Citation: 208 S.W. 474
• Court: Missouri Court of Appeals
• Parties: TITLE GUARANTY & SURETY CO. v. DRENNON et al.

208 S.W. 474

TITLE GUARANTY & SURETY CO. v. DRENNON et al.

No. 12924.

Kansas City Court of Appeals. Missouri.

December 2, 1918.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by the Title Guaranty & Surety Company, a corporation, against William M. Drennon and others, a partnership doing business under the firm name and style of Drennon, Shafer & Co. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Wendell H. Cloud, of Kansas City, for appellant.

L. O. Boyle and A. E. Watson, both of Kansas City, for respondents.

BLAND, J.

This is an action for damages for an alleged violation of instructions given, by plaintiff to defendants while the latter were acting as agents for plaintiff in selling and executing indemnity bonds. This is the second appeal in the case. See Guaranty & Surety Co. v. Drennan, 181 Mo. App. 198, 167 S. IV. 1181. In that appeal this court refused to disturb the action of the trial court in granting a new trial on the ground that the judgment was against the weight of the evidence. This last trial was before the court without the aid of a jury. The court rendered judgment in favor of the defendants, and plaintiff has appealed.

The case was tried in division No. 2 of the circuit court of Jackson county, Mo., at Kansas City. The trial took place at the September term, 1914, of said court. At the close of the evidence the case was taken under advisement with permission to counsel for plaintiff to examine and make exceptions to a certain deposition. It was suggested that counsel appear before the court on October 5, 1914, for that purpose. On that day plaintiff's counsel filed a motion for a continuance. Nothing further was done in the case until the January term, 1915, of said court, when judgment was rendered in favor of defendants. No motions for a new trial or in arrest of judgment were filed, but the court on its own motion, at the same term, set aside this judgment and made the following order:

"Wherefore it is ordered and adjudged by the court that the judgment heretofore entered in this case be, and the same is hereby, set aside and for naught held, and said case is hereby reinstated on the general docket." (Italics ours.)

Nothing further was done in the case until the May term, 1915, of the court, when notice was served by defendants upon plaintiff to appear for the purpose of taking up for disposition the motion far continuance, filed October 5, 1914. In response to this notice counsel for both parties appeared,, and without objecting to the jurisdiction of the court were heard, and the court overruled plaintiff's motion for continuance, to which action plaintiff excepted. Thereupon, without hearing any further evidence, the court again entered judgment in favor of defendants.

Plaintiff urges that the court was without jurisdiction to enter the judgment appealed from for the reason that the order made at the January term, 1915, setting aside the judgment and reinstating the cause on the general docket, that is, transferring it to the assignment division, deprived the court of further jurisdiction of the cause.

The circuit court of Jackson county is composed of nine divisions, each presided over by its own judge; each judge, except as restrained by certain rules, acting as a circuit court and exercising the full power and authority of a circuit court presided over by a sole circuit judge. That court business may be expedited and orderly administration had, the statute (sections 3968-3976, R. S. 1909) authorizes such judges, acting in banc, to pass certain rules and regulations in addition to the rules and regulations which may be adopted by the circuit court generally. In pursuance of this power, the court, in banc, provided that at stated periods one of the divisions should be designated as the assignment division, to be presided over by, the judge of that division. Each judge of the circuit court of Jackson county, Mo., holds court for the trial of such cases as are assigned to him as separately and distinctly from the circuit court held by any of his brother judges as he does from the circuit court held by his brother judges in any other circuit in the state. Voullaire v. Voullaire, 45 Mo. loc. cit. 607; Haehle v. Wabash Ry. Co., 119 Mo. loc. cit. 337, 24 S. W. 737; Goddard, to Use, v. Delaney, 181 Mo. loc. cit. 581, 80 S. W. 886; State ex rel. v. Eggers, 152 Mo. 485, 54 S. W. 498; State ex rel. v. Allen, 235 Mo. lac. cit. 304, 138 S. W. 339; In re Ward Parkway, 188 Mo. App. loc. cit. 578, 176 S. W. 529; State ex rel. v. Bird, 202 S. W. 436. When a case has been assigned to a division, that one has jurisdiction of the case so long as the case remains in the division to which it has been assigned, but when it is returned to the assignment division, it loses its jurisdiction. In re Ward Parkway, supra. It is therefore our opinion that division No. 2 lost jurisdiction of the case when it returned the same to the assignment division at the January term, 1915, of the court, that it had no right to proceed further with the case, and that the judgment rendered at the May term, 1015, was void because the court had lost jurisdiction of the case at the time the judgment was rendered.

It is contended by defendants that plaintiff waived the question of jurisdiction by appearing before the court at the May term, 1915, and, without objecting to the jurisdiction of the court, arguing for a continuance and excepting to the action of the court in overruling the motion for the same. It is well settled that a general appearance in a cause does not waive the question of jurisdiction when the court had no jurisdiction of the subject-matter. In re Drainage District v. Nabor, 256 Mo. loc. cit. 163, 165 S. W. 340; St. Louis v. Glascow, 254 Mo. 262, 162 S. W. 596; State v. Bulling, 100 Mo. 87, 12 S. W. 356; Brown v. Woody, 64 Mo. 547; State ex rel. v. Nixon, 232 Mo. 490, 134 S. W. 538 When division No. 2 transferred the case to the assignment division, it lost jurisdiction of the subject-matter, although it had...